Juvencio R. Lombrano, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 12, 1999
01981484 (E.E.O.C. Jan. 12, 1999)

01981484

01-12-1999

Juvencio R. Lombrano, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Juvencio R. Lombrano, )

Appellant, )

)

v. ) Appeal No. 01981484

) Agency No. 4F-913-0158-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination,

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. The final agency decision was received by

appellant on November 22, 1997. The appeal was postmarked December 9,

1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),

and is accepted in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint on the grounds that the complaint was moot.

BACKGROUND

Appellant contacted an EEO counselor on June 20, 1997, regarding

allegations of discrimination. Specifically, appellant alleged that he

was discriminated against when (1) he was issued Letters of Warning on

May 30, 1997 and June 2, 1997. Informal efforts to resolve appellant's

concerns were unsuccessful. Accordingly, on August 2, 1997, appellant

filed a formal complaint alleging that he was the victim of unlawful

employment discrimination on the basis of race (Hispanic).

On November 21, 1997, the agency issued a final decision dismissing

appellant's complaint on the grounds that the complaint was moot.

Specifically, the agency noted that pursuant to a Step 2 grievance, the

Letters of Warning were rescinded. The agency concluded that because

appellant was provided relief through the union grievance procedure,

his complaint was moot. Appellant submits no new arguments on appeal.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(e) requires the agency to dismiss a

complaint, or a portion thereof, which is moot. A complaint is moot and

a person is no longer aggrieved when it can be said with assurance that

there is no reasonable expectation that the alleged violation will recur;

and interim relief or events have completely and irrevocably eradicated

the effects of the alleged violation. When both conditions are satisfied,

neither party has a legal, cognizable interest in the final determination

of the underlying questions of law and fact. See County of Los Angeles

v. Davis, 440 U.S. 625, 631 (1979).

The record reveals that appellant alleged that he was subjected to

discrimination when he was issued Letters of Warning on May 30 and

June 2, 1997. Pursuant to a Step 2 grievance settlement, the Letters

were rescinded. Upon review, the Commission finds that the agency's

decision to dismiss appellant's complaint as moot was proper. Appellant,

an Hispanic male, alleged in his complaint that he was subjected

to discrimination when he was issued two Letters of Warning while a

Caucasian male was not disciplined. The record establishes that the

agency rescinded the Letters as a result of a grievance settlement dated

July 16, 1997. The Commission determines that appellant has received

all the relief to which he would be entitled if he were to prevail in

his complaint. The Commission advises appellant that he may contact an

EEO Counselor with regard to any future alleged discriminatory actions.

The Commission finds further that under the circumstances of this

case, the removal of appellant's Letters of Warning on July 16, 1997,

constituted interim relief which eradicated the effects of the alleged

violation. We find that the conditions of Davis, supra, have been

satisfied.

CONCLUSION

Accordingly, the agency's decision dismissing appellant's complaint on

the grounds that the complaint was moot is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (MO795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a

timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark,

the request to reconsider shall be deemed filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and any supporting documentation must be

submitted with your request for reconsideration. The Commission will

consider requests for reconsideration filed after the deadline only in

very limited circumstances. See 29 C.F.R. �1614.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that you have the right to file

a civil action in an appropriate United States District Court WITHIN

NINETY (90) CALENDAR DAYS from the date that you receive this decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. If you file a civil action,

YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE

OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS

OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may result in

the dismissal of your case in court. "Agency" or "department" means the

national organization, and not the local office, facility or department

in which you work. If you file a request to reconsider and also file a

civil action, filing a civil action will terminate the administrative

processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file

a civil action. Both the request and the civil action must be filed

within the time limits as stated in the paragraph above ("Right to File

A Civil Action").

FOR THE COMMISSION:

Jan. 12, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations